BARNES v. UNITED STATES

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Argument of Malcolm H. Mackey

Chief Justice Warren E. Burger: We'll hear arguments next in 72-5443, Barnes against the United States.

Mr. Mackey you may proceed whenever you are ready.

Mr. Malcolm H. Mackey: Thank you Your Honor.

Mr. Chief Justice and other members of the Court, I'll try to keep my argument relatively brief.

Most of my argument, of course, is in the brief submitted.

I did -- I do wish to point out, though I haven't filed a reply brief, I do wish to point out that I did discover a Law Review Article, Stanford Law Review Article and I would like to mention it to the Court, Volume 23, pages, it's a rather long article, 341 to 355, reviews the and I just discovered it in going through the argument, hits it on, I don't think it changes, it does have some reflection, but I call it hits it right on the button as to these presumptions, so called inferences that we are talking about.

That article and I bring it up at this point, states that there were three reasons why the rational connection test fails.

One that the right allows the prosecution to get it's case to the jury without producing any evidence of a prohibitive effect of a material element of the crime.

Two, that the presumption of the evidence is insufficient evidence to justify a finding of reasonable doubt and that, generally flatly this article states that rational connection or not all of these presumptions or inferences are unconstitutional as in giving sort of a directed verdict for the prosecution on the one element of the crime.

I would like to go back to the pure unadulterated constitution Fifth Amendment, “no person should be compelled as a witness” and we look at that little sentence or segment of the sentence, we find that, compelled to -- against the witness himself, we find nothing about a rational connection test naturally and going to the Sixth Amendment which says that “no one shall be confronted.”

They will be confronted with witnesses against them and in this case, I think, we are confronted with an inference against them which says as in the Barnes case, Mr. Barnes to not take the witness stand and he is confronted with this problem of getting over the hurdle.

If he takes the witness stand, of course, he puts himself in pandora's box into the fire and then I don't think he can use the constitutional prohibitions.

Chief Justice Warren E. Burger: And all the things that you just said true of a large area of what we vaguely call circumstantial evidence, evidence of circumstances?

You can't -- you don't have confrontation in the sense you are arguing, when you are confronted with a set of circumstances and isn't this very close to a circumstance?

Mr. Malcolm H. Mackey: It's close with distinctions, naturally circumstantial evidence, you don't have to see the boy eating the cookie, if you see the broken cookie jar, that's the old, the cookie jar analogy.

You see the boy with a cookie jar and you see cookies on his face, that's circumstantial evidence.

But aren't we doing something else with the inferences?

Aren't we saying that this -- we're applying knowledge to it and that's the problem that I see.

I think there is a distinction.

We have circumstantial evidence.

Certainly in Civil Law, we have this situation, you can put a person on and we don't have any constitutional probation, you can call a person under 776 of the Evidence Code in California and put him on and elicit all the information from.

We have (Inaudible) with it where we have presumed that certain elements in a civil case.

I don't think that these elements, we could say, a person who is (Inaudible) with one of these mafia groups.

That his presence there is some evidence that he knows the conspiracy that's going on.

But I don't think we want to do that.

I don't think that we want to limit the constitution.

Therefore, I feel that we should knock out these inferences or as in the Roger's case, no matter how piously, and the Court said, in that case, no matter how piously we state to the contrary that these inferences are in the jury's mind, that they could --

Justice William J. Brennan: Did this petitioner take the stand?

Mr. Malcolm H. Mackey: No he did not.

That's a distinction in counsel's case, they cite and I want to point --

Justice William J. Brennan: Well, I am looking at page 6 of your brief and I am puzzled.

Next to the last paragraph, “defendant admitted that having possession on the checks, but denied that he knew they were stolen and denied the forgery or uttering of these checks.”

Where was that denial?

Mr. Malcolm H. Mackey: Let me state it this way to clear it out Mr. Justice.

Number one, he didn't take the stand.

They had the FBI inspector, the postal inspector took the stand and testified as to the conversation that he had with the defendant --

Justice William J. Brennan: I see.

Mr. Malcolm H. Mackey: -- and this is the great distinction that I make.

The top case --

Justice William J. Brennan: What you are telling me, I gather Mr. Mackey that this paragraph in your brief refers to testimony of the postal inspector.

Mr. Malcolm H. Mackey: That is correct.

Chief Justice Warren E. Burger: Then on page 11, bottom of page 11 in trial, you say, his defense is that certain parties gave him these checks as payment for furniture.

Could you enlarge on that a little bit?

Mr. Malcolm H. Mackey: Yes, let me enlarge on that, as and I think this is important.

He had a used furniture store, naturally he didn't take the stand this information did not come out.

He had a used furniture -- but it did come out through the postal inspector.

He had a furniture store and he had people, he referred to as dudes and checks going out and selling furniture for him.

And they brought in the checks.

He opened up a bank account and just as a businessman would do, just as attorneys do, he stamped as -- he endorsed the checks and put it in the account.

Now this in itself certainly doesn't create knowledge that he knew.

There are other circumstances that -- in other words, my point is this, the government doesn't need this and it's limiting the Constitution, but the government doesn't need this instruction.

There is a case referred to one of the cases that this Court decide about throwing a baggie of heroine I think, I don't know, whether it's Turner or Gainey case but they throw the baggie of heroine goes out.

You see this, this is circumstance, when you see that and the heroine drops down from the car this is a circumstance, this is demonstrable evidence and which is another distinction I would make between the cases.

Certainly if you have demonstrable evidence, you would have more of a --

Justice William J. Brennan: Or did he out on any evidence at all?

Mr. Malcolm H. Mackey: Nothing.

Justice William J. Brennan: Nothing.

No witnesses take the stand?

Mr. Malcolm H. Mackey: I was -- I had to be Trial Attorney and I cross examined which I naturally has to do, cross examine the -- all we did is cross examine and I think that is the valid distinction.

Chief Justice Warren E. Burger: You spoke of his putting a stamp on that check and putting it in his bank account.

Something else had to happen before that, didn't it?

There had to be an endorsement --

Mr. Malcolm H. Mackey: An endorsement, yes.

Chief Justice Warren E. Burger: -- named payee?

Mr. Malcolm H. Mackey: That is correct.

Chief Justice Warren E. Burger: And the evidence in the record is that the handwriting expert said, he signed it and was there not an admission through the postal inspector that he said he had signed the payee's name for the check?

Mr. Malcolm H. Mackey: I don't believe there was any admission.

All he admitted and we admitted for the purposes of speeding up the trial and certainly the elements, we admitted that he put the checks in the account.

You know we were not getting around it, he put the checks in the account, but that alone, look at that circumstance, certainly that doesn't create the criminal situation that he knew if I am at a party, one of these Washington cocktail parties, and I give you some money and this was a Carmen case, and I say here, here is some money that happens to be the stolen money of the savings and loan and as Mr. Carmen refused to give back the money to the FBI and consequently had all those problems.

You could say, and I refuse to take the stand, as attorney say, “No, I am not going to take this stand, I don't have to take the stand, they are constitutional right” then I could be subject and very well subject, as I would assume this man was a Prominent Attorney in Texas, to being convicted and this was set aside by the Fifth Circuit.

Justice Thurgood Marshall: Still I am not sure, who signed these checks?

Mr. Malcolm H. Mackey: Well --

Justice Thurgood Marshall: Is there any evidence in the record as to who signed them?

Mr. Malcolm H. Mackey: The only evidence in the record on the signing of the checks is the evidence of the handwriting analyst said that these – this, now we are talking on the counts, I am separating the counts of forgery and possession.

The handwriting expert testified that the signature was forged by Mr. Barnes.

Justice Thurgood Marshall: And is there anything to the contrary in the record?

Mr. Malcolm H. Mackey: There is nothing to the contrary, no, except cross examination of myself of the handwriting expert and we didn't have at that time, we didn't have our own handwriting expert.

But the possession -- but I want to make the distinction of the two counts of possession of the checks and distinguishing that between that and forgery because I think these maybe in different categories, but my point is looking at the whole picture as a whole, if you gentleman feel that this diminished so to speak, the Fifth and Sixth Amendment therefore let's give Mr. Barnes a whole new trial on the element because as you mix sugar and coffee together, it's hard to separate and as you mix and as you fuse sulphur and iron filings together it's impossible to separate, therefore, we would ask for a new trial, and all the issues and that we do not give --

Justice Thurgood Marshall: What all can you ask for?

Mr. Malcolm H. Mackey: That's right.

Justice Thurgood Marshall: You are not doing us any favor?

[Laughter] We can do that.

Mr. Malcolm H. Mackey: Right, well, I realize that.

Chief Justice Warren E. Burger: Because your response to Justice Marshall relating to the "Clarence Smith" check, is that the check concerning the expert testimony of the handwriting expert?

Mr. Malcolm H. Mackey: There were two checks, I don't know whether it was the let's say --

Chief Justice Warren E. Burger: Well, didn't the postal inspector testify that Barnes admitted forging, signing, the name "Clarence Smith" to the checks?

Mr. Malcolm H. Mackey: Well, yes.

If he --

Chief Justice Warren E. Burger: Now that's an additional evidence besides the handwriting expert, isn't it?

Mr. Malcolm H. Mackey: Right, we admit if he signed the -- I am looking at this -- Clarence Smith was a name and he admitted, right he admitted signing it to put it in the bank, excuse me that it is correct.

He admitted signing it to put this in the bank, which is customarily the banks normally either stamp, I as an Attorney have a stamp and I stamp all these items to go into the bank, therefore -- thereby becoming an endorser of the check which is standard commercial.

If I could have the three minutes for rebuttal, thank you.

Chief Justice Warren E. Burger: Very well, Mr. Friedman?

Argument of Friedman

Mr. Friedman: Mr. Chief Justice and may I please the Court.

The petitioner in this case was convicted under six counts of an indictment growing out of the fact of two treasury checks from the mail.

He was first convicted in two counts of unlawfully having possession of property stolen from the mail, that is the two treasury checks, he was then convicted of forging the two treasury checks and finally he was convicted of uttering the two treasury checks.

As is true in most of cases of this type the evidence was largely circumstantial.

And the principle issue in the case is whether the judge correctly instructed the Jury that in determining whether petitioner had knowledge that this property was stolen, which is one of the elements of the offensive, possessing stolen property, whether the jury probably could infer from the fact of unexplained possession of recently stolen property together with all of the other evidence, that the petitioner knew the property was stolen.

Now what was the evidence --

Justice Potter Stewart: That's part of it and then don't you have to go further and say that the inference was that he knew it was stolen from the mail because there was the charge on that?

Mr. Friedman: No, Mr. Justice Stewart, there was not the charge.

Under the statute all that is required is that he know it is stolen and that it'd be stolen from the mail.

Justice Potter Stewart: Well, alright.

Mr. Friedman: We discuss -- he didn't have to know it was stolen from the mail.

All he had to know was it was stolen and all that we had to show in addition to that --

Justice Potter Stewart: That In fact it was stolen?

Mr. Friedman: -- that in fact it was stolen.

We discuss this in our brief and we show that the legislative history indicates, at one time there was a requirement that he know it would be stolen from the mails, and Congress deleted the word of the statute to say that the government didn't have that burden of showing it was stolen from the mails, but only that he knew it was stolen.

In other words --

Justice Potter Stewart: The burden now as to show – it has to -- it has the burden.

The government now has a burden of showing that he knew it was stolen and that it was stolen from the mail?

Mr. Friedman: Stolen from the mail, that is correct.

Now, what was the evidence before the jury, which led it to convict the petitioner.

The starting point of this story is that 2nd of June in 1971, in which the petitioner whose name is James Edward Barnes opened a bank account under the name of Clarence Smith.

Approximately a month later on the 1st of July, it was stipulated that the government mailed a treasury check representing retirement to a lady named Nettie Lewis for $269 and that two days later the government mailed a similar check for $286 to a lady name Mary Hernandez covering social security payments.

Both of these ladies testified, they never received those checks.

Five and seven days after these mailings in a different branch of the bank, petitioner deposited these two checks, each of these checks had on it the endorsement respectively of Nettie Lewis and Mary Hernandez, and also the name, Clarence Smith.

The two recipients of the checks who never got them, testified they didn't know petitioner, they never authorized petitioner to deposit the checks.

A handwriting expert, who had taken handwriting exemplars from the petitioner, testified that upon comparing the exemplars with the signatures on the checks, that petitioner was the man who signed all three names that is Nettie Lewis, Mary Hernandez, and Clarence Smith.

Now, petitioners' side of the story was presented through the testimony of the postal inspector and petitioner's counsel told the Jury in his closing argument that since the postal inspector had presented petitioner side of the case, there was no need for him to be called to the stand.

The testimony he gave was that he said he was in the furniture business and that these checks have been presented to him by men and women, who are going out selling furniture door-to-door.

He was unable to identify any of the people who allegedly sold the furniture for him.

Moreover, he said, “He had no records of any of these furniture orders” because he said, “These orders are put it on scraps of pay book which they didn't take.”

He admitted that he signed the name Clarence Smith on --

Justice Potter Stewart: Tons of paper which they didn't --

Mr. Friedman: Which he had no record if, you know, they just put it down on a little piece of scrap paper and he didn't have any record of these furniture sales.

Justice Potter Stewart: Made by his agents?

Mr. Friedman: Made by, made by his agents, yes.

He admitted to the postal inspector that he signed the name Clarence Smith on the checks, but denied that he'd signed the names Nettie Lewis and Mary Hernandez.

The court gave the jury a traditional instruction with respect to the inferences that maybe drawn from the unexplained possession of recently stolen property.

In fact, the instruction is taken from a well-known form book called Devitt and Blackmar, Federal Jury Practice and Instructions which I understand is currently, widely used in the Federal Courts as a basis for Jury instructions.

But the court made clear --

Justice William J. Brennan: How long go is that published?

Mr. Friedman: This -- the second edition of this book was published in 1970.

Justice William J. Brennan: The First edition?

Mr. Friedman: First Edition, I don't know Mr. Justice.

Justice William J. Brennan: I see.

Mr. Friedman: The instruction made it quite clear to the Jury that they would have considered all the evidence from this case, not just the inference that maybe drawn from possession, and that the -- they would have drawn no inference from the defendant's failure to take the stand.

What the court said, and this is set forth at footnote 6 of the bottom of the page 7 of our brief is that possession of recently stolen property, if not satisfactorily explained is ordinarily a circumstance from which you may, may reasonably draw the inference and find in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen.

The court then immediately charged the jury, however, you are never required to make this inference, because he said it's the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case, ward any inference which the law permits the jury, not requires, permits the jury to draw from the possession of recently stolen property.

And then, as saying in considering whether possession of recently stolen properties have been satisfactorily explained, and court reminded the jury that the accused need not take the witness stand and testify and finally he pointed out, “That possession maybe satisfactorily explained through other circumstances, other evidence independent of any testimony of the accused.”

And of course, as the accused's counsel stated to the jury he had attempted to explain his possession through this rather incredible statement that he made to the postal inspector.

Finally, the judge charged the jury of two or three other things.

He told the jury that it was permitted to draw from the facts which you find have been proved such reasonable inferences that you feel are justified in the light of experience.

It gave the traditional instructions that the burden is on the prosecution of proving every essential element of the crime charged.

And finally that the jury was not to single out any single instruction of stating the law who is look to the instructions as a whole.

Now, this inference that --

Justice William J. Brennan: Mr. Friedman did the judge then required in his instructions deal with his attempted explanation in the form of a house master?

Mr. Friedman: No, he didn't comment on the explanation as such.

Justice William J. Brennan: Did he comment generally on any of that?

Mr. Friedman: No, he did not generally comment.

He just explained the law and stated of the elements and told the jury it was up to them to decide the facts.

Justice William H. Rehnquist: Mr. Friedman, did any -- did the petitioner's explanation to the postal inspector include any explanations to why he opened the name of the -- why he used the name Clarence Smith in opening the bank account.

Mr. Friedman: That was not brought out before the jury, but there was a colloquy, he explained that he had been on parole at the time, and it was concerned would if his true name came out, it might be difficult for him in his business dealings, but that was not brought up before the jury because of the possible prejudice of his being -- that he was on parole.

Justice William J. Brennan: Are you logging at all that he is really in opposition to attack the instructions since in fact he relies on what the postmaster and the inspector testified as was his explanation?

Mr. Friedman: We don't make that argument as such because he did accepted the instruction, what we say is that his claim, his claim that as a result of this instruction -- that this instruction constituted in impermissible comment on his failure to take the stand that that claim seems to be belied by the fact that he relied on the postal inspector --

Justice William J. Brennan: As an explanation?

Mr. Friedman: As an explanation and stated in fact that there was no need for him to take the stand under these circumstances.

Now, this inference of knowledge from unexplained possession of recently stolen property is one of the oldest known to law.

It goes far back into the history of the common law.

This Court and the lower Federal Courts have consistently improved the instruction, I think the only exception that I know is the Fifth Circuit case decision in Cameron upon which petitioner largely relies.

Justice William J. Brennan: The court had approved it?

Mr. Friedman: Yes, Mr. Justice as recently as 1946 -- I am sorry 1964 in the Rugendorf case which involve the possession of stolen purse.

Justice Byron R. White: I gather than we should look to this case as though the government had only put into the evidence of the fact that possession plus fact that goods were recently stolen and have been stolen from mail.

Mr. Friedman: No, Mr. Justice it's much more than that.

Justice Byron R. White: Well, I know, but – wouldn't that had been enough?

Mr. Friedman: That probably would have been enough, but the court didn't so limit these.

Justice Byron R. White: Well, I understand that.

You are saying then that the -- that the instructions here is -- even if there is --

Mr. Friedman: Yes, we do like that argument, but our position --

Justice Byron R. White: That's the only one?

Mr. Friedman: No, we think the instruction is proper.

Justice Byron R. White: Alright then, you would make the same argument, if the only evidence there was in the case.

Mr. Friedman: If that was the only evidence in the case, the jury may infer --

Justice Byron R. White: And you would say that the instruction nevertheless would be valid?

Mr. Friedman: Would be valid.

Justice Byron R. White: And the conviction would be valid, if your only evidence was possession, proof of brief and that is was from mail?

Mr. Friedman: And lack of any explanation.

Justice Byron R. White: Record is otherwise is silent?

Mr. Friedman: But that we think would be enough Mr. Justice.

But as I say in this case there was a great deal more than.

Justice William J. Brennan: Well, as I said there is so much more, should we address ourselves to the question of the inference as such?

On a hypothetical as Justice White just put it?

Mr. Friedman: Well, I think only because Mr. Justice and I assume the reason the Court took the cases of the conflicting decision of the Fifth Circuit in the Cameron case.

Justice Potter Stewart: The petition of certiorari is pending here in the Cameron case, is it not?

Mr. Friedman: No, Mr. Justice, that particular decision has -- I don't believe is pending because that case has been reversed and was retried I understand.

There maybe a further, there may be a petition pending growing out of his second conviction, but I am not certain.

Justice Potter Stewart: There is and you can see the square conflict between this decision by the Court of Appeals and the Cameron case?

Mr. Friedman: Yes, the instruction that the Court of Appeals struck down in the Cameron cases, almost a carbon copy to the instruction which the Ninth Circuit here approved.

Justice William J. Brennan: Well, tell Mr. Friedman is it possible, I am not familiar with the Cameron case, but that gather it falls under this hypothetical that Mr. Justice White put to you, is it possible that that case could be affirmed and this one also?

Mr. Friedman: I wouldn't think so as it was decided, Mr. Justice. Let me explain.

Justice Harry A. Blackmun: Couldn't you draw distinction.

I am asking really, between the fact of the Cameron case involved currency, did it not?

Mr. Friedman: It did, it did.

Justice Harry A. Blackmun: And you think the fact that ordinary negotiable currency creates a different fact situation than one of government checks?

Mr. Friedman: It might Mr. Justice, expect that the Fifth Circuit in its Cameron decision did not go on that basis.

What the Firth Circuit said in the Cameron case was that the inference cannot be drawn where the element of knowledge is itself a separate element of the offense.

The Fifth Circuit in Cameron said, “Ordinarily, the instruction from unexplained possession is a permissible one,” but it said, “you can't draw that inference, where the fact of knowledge is a separate element of the offense' and it said, “since the charge there involved proof, both of possession have recently stolen property and knowledge that it was stolen, you couldn't infer from the fact that possession of the fact of knowledge.”

Now I assume that what the court really was saying in that case was that since Congress has specified two elements of the offense, the government couldn't prove the two elements by merely proving the one, I assume this, is what the legal rational, it's not clear in the opinion.

Well, I answer to that is two-fold.

First, we think as a matter of analysis it's unsound because it's not the same offense.

It's not the same evidence.

Possession is proven merely by showing possession of stolen property.

The inference maybe drawn only if it's possession of recently stolen property that is not satisfactorily explained, but more basic than that we don't think there is any justification for drawing this distinction, the reason this inference from possession of -- unexplained possession of recently stolen property has been upheld, since time immemorial is because that comports with normal experience.

If a person ordinarily has unexplained possession of recently stolen property, it seems that just common sense that the chances are great, that he is either the thief who at least knows that --

Justice Byron R. White: What do you think the standard is, Mr. Friedman?

Is it no rational connection, a tort type thing or is it more likely than that?

Mr. Friedman: We think it's more likely to not stand it and we certainly do --

Justice Byron R. White: And that's from Leary?

Mr. Friedman: That's from Leary, I believe, but we think whatever --

Justice Byron R. White: You are willing to accept that standard --

Mr. Friedman: More rational --

Justice Byron R. White: -- the prejudice?

Mr. Friedman: Yes.

Justice Byron R. White: It's more likely than that?

Mr. Friedman: More likely -- the standard we don't accept, the standard we don't think is a sound standard is the question this Court has left open that it has -- you have to prove beyond a reasonable doubt that the inferred fact flows from the proven fact.

We don't think that standard is appropriate.

Justice Byron R. White: Don't you have to get to my example that I gave a while ago, simply goes the instruction actually was given, and the jury was -- would have been permitted to disbelieve every -- all the other evidence except those basic facts.

Mr. Friedman: Well, it could --

Justice Byron R. White: You just don't know what the jury -- the jury might have been relied on just those basic facts?

Mr. Friedman: Except, Mr. Justice for the fact that the instruction was qualified by the words ”in the light of the surrounding circumstances shown by the evidence in this case.”

Justice Byron R. White: But when you just the say the question just isn't really here as to the validity of these – it's just interference?

Mr. Friedman: Of the naked inference itself, we don't think it's here.

Justice William H. Rehnquist: You don't have to defend that on the basis of this instruction?

Mr. Friedman: No, that's correct and I am perfectly happy to defend that, but it seems to me, we don't have to defend it on this instruction.

I assume the reason we --

Justice William J. Brennan: Why in fact Mr. Friedman under the -- is the issue really here, why do we have to decide it?

Mr. Friedman: Well, we -- Mr. Justice we opposed the petition for certiorari in this case --

Justice William J. Brennan: Well, perhaps this could -- [Laughter]

Mr. Friedman: We do, we usually do, but we suggested in this case --er

Justice William J. Brennan: Well as this a candidate for dismissal as improvidently granted?

Mr. Friedman: I would think, it would be appropriate Mr. Justice.

The thing that bothers us of course is the decision of the Fifth Circuit in the Cameron.

Justice Byron R. White: I don't know that that effects you with the -- that -- those words in that instruction really save it in a sense that the Jury still could have disbelieved everything except the fact of possession?

Mr. Friedman: Yeah the jury could have Mr. Have Mr. Justice but there jury was instructed, it had to find proof beyond a reasonable doubt, every element of the offense.

Justice Byron R. White: Of possession, of the fact that it was recently stolen and the fact it was recently stolen from the mail, that's all it had to really believe?

Mr. Friedman: That's all it had to believe, but I think we must assume however that the jury did follow the court's instruction, that is, looking to all the circumstances of the case.

Justice Byron R. White: Well, I know but it didn't have to believe it.

All it really had to do was to – it could have disbelieved all the other evidence, but still relied on the instruction?

Mr. Friedman: It could have, but there is no reason to think Mr. Justice that in deciding to draw the inference and the court stressed that the jury was not required to draw the inference, but it was within it's discretion.

I think in deciding to draw the inference one must assume that the jury looked at all the facts.

Justice Byron R. White: Well, then that tihs case suggested that the prosecutor and the prosecution suggested to the judge that at least that prosecution shouldn't submit.

Mr. Friedman: No we don't know.

We don't suggest that, we think this is --

Justice Byron R. White: You mean you wouldn't like the abandoned instructions and facts like that?

Mr. Friedman: No, no we think this is a very strong case on the fact.

I don't think there is any question of that and we think that this instruction here, leaves it to the jury fully to consider all the facts in the case to draw whatever inferences are appropriate to be drawn from the facts and to just determine on all the facts, on the circumstantial evidence as a jury ordinarily does in deciding, for instance, of circumstantial evidence whether the government had proved beyond a reasonable doubt that the petitioner has knowledge that checks were stolen and we submit that on this record the jury was fully justified in drawing that inference.

Chief Justice Warren E. Burger: Well, we well recall which did as Mr. Justice White said as usual opposed the grant of the petition, but now that it's here in light of the Fifth Circuit, is this in your view something that ought to be clarified for the benefit of the Fifth Circuit, if no one else?

Mr. Friedman: I would think so Mr. Justice.

It's most unfortunate but there seemed to be an enormous number of prosecutions involving possession of stolen property, theft from the mails is constantly a serious problem.

This decision of the Fifth Circuit is causing problems.

Conceivably another circuit might follow, I assume at least within the Fifth Circuit it would be very difficult.

Justice Byron R. White: Then you say that this case that we had before us, really isn't unique, that there really isn't conflict of this sort?

Mr. Friedman: I thought I have made that clear Mr. Justice, there is conflict in that, the Fifth Circuit found inadequate and improper virtually the identical instruction to that which the judge gave in this case and which the Ninth Circuit proved.

Chief Justice Warren E. Burger: And approximately one-third of all the Federal district judges in the country are bound by the Fifth Circuit holding, are they not?

Mr. Friedman: A large -- I don't know the exact -- I wouldn't be at all surprised Mr. Chief Justice.

Chief Justice Warren E. Burger: Mr. Mackey do you have any thing further?

Rebuttal of Malcolm H. Mackey

Mr. Malcolm H. Mackey: Yes, I want to just make a few comments.

Justice William O. Douglas: By the way your citations of the Standford Law is not --

Mr. Malcolm H. Mackey: I have the exact -- I have the book from the library, here Your Honor, excuse me.

Let me look at the -- I am looking at Volume 22, page 3, it starts at 341 and goes to 355.

I checked it out of your library.

Justice William O. Douglas: You said, 23?

Mr. Malcolm H. Mackey: Excuse me.

Justice William J. Brennan: 22

Mr. Malcolm H. Mackey: 22, yes and it is a very comprehensive tridus of the whole thing going in the rational connection test and in the whole (Inaudible).

I might say one distinction, the Rugendorf case which counsel cites, the defendant did take the stand and that is a distinction I make.

The Leary case change, it was affirmed Leary, that the changes started coming in this and McDevitt (ph) hasn't been changed, they are following the same instructions without modifications to the Leary case.

Chief Justice Warren E. Burger: But the Leary case involved a presumption and not an inference, did it not?

Mr. Malcolm H. Mackey: It did, but as the Roger's case against it, no matter what we call it, it still creates a hardship.

It still in the jury's mind gives one element of the crime.

Incidentally there was another jury instruction which I think has a bearing, it's getting to what the justices brought out.

That instruction is and it's a standard one, that if from all the instruction that from the all the instructions inferences or deductions which have been established by the evidence, which means if there is just an inference and no testimony, the defendant in this case would lose.

In the civil case, this would happen.

In a fire case, where we throw in this would happen and I don't think we have that, fortunately we have the Constitution which is a probation against these type of inferences as I can envision many other type of inferences that the government would like to use and this would stop it.

Incidentally in that Law Review Article, the case which is standing at it still which was one of the cases -- Gainey case and that was highly criticized in the article, but we can make a distinction here an illegal, if you want a distinction you have it gentleman, here is an illegal operation still in somewhere in the mountains I assume and here is a question of checks, endorsing checks, putting in a bank account and Mr. Cameron, money that someone pays him to represent someone in a criminal case.

The Cameron case as we discussed was reversed and the attorney got off the hook in that case.

What has happened to it, I don't really know, but it may never come up again.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.